HKSAR v. Nguyen Thi Phu

DCCC 438/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 438 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to one count of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115 (the first charge) and one count of “breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115 (the second charge).

Facts

2.On the afternoon of 2 April, 2016, WPC 18366 and her colleague were on patrol along Castle Peak Road in Sham Shui Po, Kowloon.  At 3.27 p.m., they were patrolling the staircase on the 2^nd floor, No. 306 Castle Peak Road, Sham Shui Po when they spotted the Defendant and another Vietnamese female.  WPC 18366 intercepted the Defendant and asked her to produce her proof of identity. The Defendant could not do so, and told the police officer in punti that she and the other female were illegal immigrants. WPC 18366 immediately arrested the Defendant for the offence of “Unlawful Remaining”.  Subsequently under caution, in the presence of a Vietnamese interpreter, the Defendant admitted, inter alia, that she had been born in Vietnam on 24, January, 1967.  She entered Mainland China on 30 March, 2016 and arrived in Shenzhen on 31 March, 2016 and took a boat from Shenzhen to Hong Kong at about 6 p.m. on 31 March, 2016.  She had been staying in a park after entering Hong Kong. She also admitted that this was her fourth illegal entry into Hong Kong and that she had spent HK$22,000 to travel to Hong Kong.  A fingerprint check revealed that the Defendant was the subject of a deportation order issued on 11 August, 2010. She was then arrested for the offence of “Breach of Deportation Order” and cautioned and said under caution that she knew she had breached the deportation order. She claimed she had difficulties in living in Vietnam and she had illegally entered Hong Kong to avoid debts.

Previous convictions

3.The Defendant has 5 previous convictions in two court appearances. She has two previous convictions similar to Charge 1, i.e.  this is her third unlawful entry into Hong Kong, and one previous similar to charge 2.

Mitigation

4.The Defendant is aged 49 years. She is a Vietnamese. Mr. Chan, for the Defendant, informed the Court that the Defendant took no issue with contents of the Antecedent Statement, wherein she was described as being single and having completed primary education in Vietnam and with no working experience. Yet in mitigation, he said he was instructed to inform the Court that the Defendant was divorced with 2 children a daughter aged 21 years, a medical student who will graduate in less than a year, and a son aged 19 years who is unemployed.  In Vietnam, she was a farmer, earning about 300 million dong, which I was told was the equivalent of HK$1,000 a month.  She was the main financial support of her family. She also has 3 sisters – an elder sister aged 58 years, a farmer in Vietnam, who is now the main financial support of the family, and 2 elder sisters aged 55 and 53 years, who both suffer from mental illness and thus cannot work and require constant care from family members.  She had come to Hong Kong to avoid harassment from Vietnamese extortionists from whom she had borrowed money to support the family.  She knew that she would not be able to attend the graduation of her daughter. She said that after her daughter graduated, she would become the main financial support of the family so the Defendant’s chance of re-offending was low.  When asked by the Court if the Defendant had spent HK$22,000 to travel to Hong Kong, as she had admitted when the summary of facts were read to her, Mr. Chan said he had nothing to say in that regard.  Mr. Chan had submitted a list of authorities on sentence, which authorities I have considered.  He also submitted that the sentences for the two offences should run concurrently.  In passing sentence, I have considered all that has been urged upon me by Mr. Chan on behalf of the Defendant as well as all the authorities that have been handed up.

Sentence

7.For the first charge of “unlawful remaining”, the maximum sentence is a fine at level 4 (i.e. HK$25,000) and 3 years’ imprisonment. The maximum sentence for the second charge of breach of deportation order is 7 years’ imprisonment upon conviction on indictment.

8.In R. v. So Man-king, [1989] 1 HKLR 142, the Court of Appeal held that allowing for a guilty plea, a sentence of 15 months’ imprisonment (i.e. a starting point of 22 ½ months’ imprisonment) should be used as the basic guideline unless there are strong humanitarian considerations. The Court of Appeal further held that a Court should take into account. by upward adjustment, any previous unlawful entry (see HKSAR v Bui Van Khai, CACC 175/2012 HKSAR v Pham Van Hung, CACC 14/2011 and HKSAR v Ta Dinh Son, CACC 348/2013).

9.There are no guideline sentences for offences of breach of deportation orders. Generally, the starting point for a first breach is one of 27 months’ imprisonment (see for example HKSAR v. Ta Dinh Son, CACC 348/2013). Repeat offending is a significant aggravating feature justifying an upward adjustment of the starting point. For the second to seventh commission of this offence, the starting point ranges from 36 to 42 months’ imprisonment (see HKSAR v Bui Van Khai, CACC 175/2012, HKSAR v Pham Van Hung, CACC 14/2011 and HKSAR v Ta Dinh Son, CACC 348/2013).

10.Further, according to the Court of Appeal’s guideline, the sentences for the first charge and the second charge should run concurrently.

11.Save for the Defendant’s pleas of guilty, in my view there is little other mitigation of weight before me. Counsel did not address me in respect of any humanitarian considerations to be considered, nor did I see any on the mitigation put before me.

12.In respect of the first charge, since it is the Defendant’s third unlawful entry into Hong Kong, I adopt a starting point of 2 years and 3 months’ (i.e. 27 months) imprisonment. She is entitled to the usual one-third discount for her guilty plea. The sentence is therefore reduced to 18 months’ imprisonment.

13.For the second charge, since it is the Defendant’s second such conviction, a starting point of 33 months is appropriate. The sentence is reduced to 22 months’ imprisonment to reflect the Defendant’s guilty plea.

14.The sentences for the two charges are ordered to run concurrently.The total sentence imposed on the Defendant is 22months’ imprisonment.